"Key
to Liebowitz’s strategy is the pursuit of statutory damages. Under the
Copyright Act of 1976, federal plaintiffs can be awarded statutory
damages if they can prove “willful” infringement,
a term that is not explicitly defined in the text of the bill. (“What
is willful infringement? It’s what the courts say it is,” explained
Adwar. Welcome to the wonderfully vague world of copyright law!) If
a plaintiff had registered the work in question with the Copyright
Office before the infringement occurred or up to three months after the
work was initially published, then he or she can sue for statutory
damages, which can be as high as $150,000 per work infringed. That’s
a pretty hefty potential fine for the unauthorized use of a photograph
that, if it had been licensed prior to use, might not have earned the
photographer enough for a crosstown taxi.
“Photographers are basically small businesses. They’re little
men. But you have this powerful tool, which is copyright law,” said Kim,
the freelance photographer. The question that copyright attorneys,
media executives, and federal judges have been asking themselves for 2½
years is this: Is Richard Liebowitz wielding that tool responsibly? “He
offers [his clients] nirvana, basically. He essentially offers them: I
will sue for you, I don’t care how innocuous the infringement, I don’t
care how innocuous the photograph, I will bring that lawsuit for you and
get you money,” said attorney Kenneth Norwick. And the law allows him
to do it. So is Liebowitz gaming the system by filing hundreds of
“strike suits” to compel quick settlements? Or is he an avenging angel
for photographers who have seen their livelihoods fade in the internet
age? “They can call Richard Liebowitz a troll,” said Kim. “Better to be a
troll than a thief.”...
Over the past 2½ years, Liebowitz has attained boogeyman status in the
C-suites of major media organizations around the country. Like the
villain in a very boring horror movie featuring content management
systems and starring bloggers, his unrelenting litigiousness has
inspired great frustration amongst editors and media lawyers fearful
that they will be the next to fall victim to the aggravating time-suck
known as a Richard Liebowitz lawsuit. And he is probably all of the
things his detractors say he is: a troll, an opportunist, a guy on the
make taking advantage of the system. He is also a creature of the media
industry’s own making, and the best way to stop him and his disciples is
for media companies to stop using photographers’ pictures without
paying for them—and to minimize the sorts of editorial mistakes borne
out of ignorance of or indifference to federal copyright law. “People
should realize—and hopefully will continue to realize,” said Liebowitz,
“that photographers need to be respected and get paid for their work.”"
